A spotted owl had been seen on the Walker Creek site in 1986, and a pair
of spotted owls nested on the site in 1990, hatching two offspring. Another spotted owl
was seen on the site in 1991. A breeding pair was present on the site in 1992. In early
1992, Boise sought approval from the State Forester of its plan to harvest the timber on
the site. The State Forester did not approve Boise's harvesting plan because the plan did
not identify for protection 70 acres of suitable spotted owl habitat encompassing the
nesting site at Walker Creek. The Board of Forestry upheld the denial of Boise's plan on
the ground that the proposed plan failed to comply with former OAR 629-24-809. A
subsequent plan permitted Boise to log several acres of the Walker Creek site but only
during time frames when no owls were nesting on the site.

On remand, Boise dropped its claim under the Oregon Constitution and
proceeded only on its federal constitutional claim. Boise moved for partial summary
judgment, and the trial court ruled as a matter of law that a regulatory taking had
occurred. The question of damages was tried to a jury, as was a question as to whether a
taking by "physical invasion" had occurred. Meanwhile, one of the spotted owls on the
Walker Creek site had died and the other had left the site, and all restrictions on logging
the site were lifted. The jury returned a verdict for Boise, and the trial court entered
judgment for Boise in the amount of $2,279,223 in damages for the temporary restriction
on its logging of the Walker Creek site. This appeal ensued.

On appeal, the state makes numerous arguments that the trial court erred in
failing to dismiss the claim, in granting partial summary judgment, in limiting the state's
evidence, in instructing the jury, and in various other regards. We turn first to the state's
argument that the trial court lacked jurisdiction by reason of the Eleventh Amendment to
the United States Constitution.

The state argues that there is no direct right of action under the Fifth and
Fourteenth Amendments to the United States Constitution against the state in a state
court. The state maintains that, although Congress can, and has, abrogated the states'
immunity from suit by way of its power to enforce the Fourteenth Amendment, Boise has
not pleaded its case under any statute that abrogates the state's immunity, e.g., 42 USC
section 1983. Although the state acknowledges that a number of takings claims under
the federal constitution have proceeded in Oregon courts throughout the years, it argues
that the sovereign immunity question was not raised and thus was not addressed in those
cases.

Boise responds that, although the Eleventh Amendment may bar plaintiffs
from pursuing federal constitutional claims against states in federal court, it "has nothing
to do with barring a plaintiff from bringing a takings claim against the State, based on the
federal constitution, in the Oregon courts[.]" Until quite recently, Boise's position on this
question seemed unassailable. See, e.g., Hilton v. South Carolina Public Railways
Com'n, 502 US 197, 204-05, 112 S Ct 560, 116 L Ed 2d 560 (1991) ("But as we have
stated on many occasions, 'the Eleventh Amendment does not apply in state courts.'").
However, in a recent series of cases, the United States Supreme Court has significantly
altered its position on the question of states' sovereign immunity. Most directly on point
is Alden v. Maine, 527 US , 119 S Ct 2240, 144 L Ed 2d 636 (1999), which concerned
an attempt by state employees to enforce the Fair Labor Standards Act (FLSA), 29 USC
section 201 et seq., against the state in a state court proceeding. Although the FLSA
contains a provision purporting to authorize actions against states in their own courts, the
Court held that "the powers delegated to Congress under Article I of the United States
Constitution do not include the power to subject nonconsenting States to private suits for
damages in state courts." 119 S Ct at 2246.

The Court went on to indicate, though, that sovereign immunity would "not
bar all judicial review of state compliance with the Constitution[.]" Id. at 2266. In
particular, the Court pointed out:

"We have held also that in adopting the Fourteenth Amendment, the
people required the States to surrender a portion of the sovereignty that had
been preserved to them by the original Constitution, so that Congress may
authorize private suits against nonconsenting States pursuant to its § 5
enforcement power. Fitzpatrick v. Bitzer, 427 US 445[, 96 S Ct 2666, 49 L
Ed 2d 614] (1976). By imposing explicit limits on the powers of the States
and granting Congress the power to enforce them, the Amendment
'fundamentally altered the balance of state and federal power struck by the
Constitution.' Seminole Tribe [of Fla. v. Florida, 517 US 44, 59, 116 S Ct
1114, 134 L Ed 2d 252 (1996)]. When Congress enacts appropriate
legislation to enforce this Amendment, see City of Boerne v. Flores, 521
US 507[, 117 S Ct 2157, 138 L Ed 2d 624 (1997)], federal interests are
paramount, and Congress may assert an authority over the States which
would be otherwise unauthorized by the Constitution. Fitzpatrick, supra,
at 456." Alden, 119 S Ct at 2267.

Thus, the question comes down to whether Boise can maintain an inverse
condemnation action against the state in state court, based on an alleged violation of the
Fifth Amendment to United States Constitution, in the absence of congressional action
pursuant to section five of the Fourteenth Amendment authorizing such an action. As a
general matter, the Alden decision discussed above might suggest that the answer is "no,"
because of its emphasis on positive acts of Congress under section five of the Fourteenth
Amendment. However, certain language in the Alden decision, particularly when read in
conjunction with some of the Court's earlier case law describing the Fifth Amendment as
"self-executing," casts doubt on such a conclusion. In Alden, the Court distinguished the
issue before it from the issue presented in Reich v. Collins, 513 US 106, 115 S Ct 547,
130 L Ed 2d 454 (1994):

"In Reich v. Collins, 513 US 106 (1994), we held that, despite its immunity
from suit in federal court, a State which holds out what plainly appears to
be a 'clear and certain' postdeprivation remedy for taxes collected in
violation of federal law may not declare, after disputed taxes have been
paid in reliance on this remedy, that the remedy does not in fact exist. Id. at
108. This case arose in the context of tax-refund litigation, where a State
may deprive a taxpayer of all other means of challenging the validity of its
tax laws by holding out what appears to be a 'clear and certain'
postdeprivation remedy. Ibid.; see also Fair Assessment in Real Estate
Assn., Inc. v. McNary, 454 US 100[, 102 S Ct 177, 70 L Ed 2d 271]
(1981). In this context, due process requires the State to provide the
remedy it has promised. Cf. Hudson v. Palmer, 468 US 517, 539[, 104 S
Ct 3194, 82 L Ed 2d 393] (1984) (O'Connor, J., concurring). The
obligation arises from the Constitution itself; Reich does not speak to the
power of Congress to subject States to suits in their own courts." Alden,
119 S Ct at 2259 (emphasis added).

Although Reich has little direct bearing on the issue before us, as it did not involve any
issues of sovereign immunity, the Court's description of Reich in Alden strongly suggests
that states may be required to provide promised remedies in state court proceedings by
force of the Due Process Clause alone.

Further support for this idea that the Constitution itself may dictate the
availability of remedies in state court under certain circumstances can be found in First
Lutheran Church v. Los Angeles County, 482 US 304, 107 S Ct 2378, 96 L Ed 2d 250
(1987). Although First Lutheran did not squarely present the type of sovereign
immunity issue with which we are confronted, it provides significant guidance on the
issue. In First Lutheran, the plaintiff sued a county after it adopted an interim ordinance
that temporarily banned construction within a flood zone. 482 US at 307-08. The focus
of the case was whether a temporary regulatory taking constituted a taking under the
Fifth Amendment. It does not appear from the text of the opinion that a sovereign
immunity defense was raised. However, the Solicitor General, an amicus in the case, did
make a sovereign immunity argument that the Court addressed:

"We have recognized that a landowner is entitled to bring an action
in inverse condemnation as a result of 'the self-executing character of the
constitutional provision with respect to compensation * * *.' United States
v. Clarke, 445 US 253, 257, 100 S Ct 1127, 63 L Ed 2d 373 (1980),
quoting 6 P. Nichols, Eminent Domain § 25.41 (3d rev ed 1972). As noted
in Justice Brennan's dissent in San Diego Gas & Electric Co., 450 US
[621], 654-55, 101 S Ct 1287, 67 L Ed 2d 551 [(1981)], it has been
established at least since Jacobs v. United States, 290 US 13, 54 S Ct 26,
78 L Ed 142 (1933), that claims for just compensation are grounded in the
Constitution itself:

"'The suits were based on the right to recover just
compensation for property taken by the United States for
public use in the exercise of its power of eminent domain.
That right was guaranteed by the Constitution. The fact that
condemnation proceedings were not instituted and that the
right was asserted in suits by the owners did not change the
essential nature of the claim. The form of the remedy did not
qualify the right. It rested upon the Fifth Amendment.
Statutory recognition was not necessary. A promise to pay
was not necessary. Such a promise was implied because of
the duty to pay imposed by the Amendment. The suits were
thus founded upon the Constitution of the United States.' Id.
at 16, 54 S Ct 26, 78 L Ed 142. (Emphasis added [by First
Lutheran court]).'

"9 The Solicitor General urges that the prohibitory nature of the
Fifth Amendment * * * combined with principles of sovereign immunity,
establishes that the Amendment itself is only a limitation on the power of
Government to act, not a remedial provision. The cases cited in the text, we
think, refute the argument of the United States that 'the Constitution does
not, of its own force, furnish a basis for a court to award money damages
against the government.' Brief for United States as Amicus Curiae 14.
Though arising in various factual and jurisdictional settings, these cases
make clear that it is the Constitution that dictates the remedy for
interference with property rights amounting to a taking. See San Diego
Gas & Electric Co. v. San Diego, 450 US 621, 655 n 21, 101 S Ct 1287, 67
L Ed 2d 551 (1981) (Brennan, J., dissenting), quoting United States v.
Dickinson, 331 US 745, 748, 67 S Ct 1382, 91 L Ed 1789 (1947)." First
Lutheran, 482 US at 315-16, 316 n 9.

Piecing together the Court's various statements in First Lutheran with its
description of Reich in Alden, we conclude that the Court, in its recent Eleventh
Amendment decisions, did not intend to abandon the notion that at least some
constitutional claims are actionable against a state, even without a waiver or
congressional abrogation of sovereign immunity, due to the nature of the constitutional
provision involved. We recognize that our conclusion on this point is not beyond
dispute. See, e.g., Azul-Pacifico, Inc. v. City of Los Angeles, 973 F2d 704, 705 (9th Cir
1992), cert den 506 US 1081 (1993) (Takings plaintiff had "no cause of action directly
under the United States Constitution. We have previously held that a litigant
complaining of a violation of a constitutional right must utilize 42 USC 1983[.]").
However, particularly in light of the Court's rejection of the amicus curiae's sovereign
immunity argument in First Lutheran, and in light of the fact that the state has explicitly
disavowed any reliance on Alden in the present case, we conclude that Alden should not
be read so broadly as to dictate that states may not be sued in state courts on federal
takings claims unless they have specifically waived their sovereign immunity. We
conclude that, because of the "self-executing" nature of the Fifth Amendment, as applied
to the states through the Fourteenth Amendment, a state may be sued in state court for
takings in violation of the federal constitution.

The state next argues that the trial court erred in denying its motion to
dismiss for failure to state a claim under either of two theories: the Lucas theory
(deprivation of all beneficial use of property) and the Loretto theory (physical occupation
of property). See generally Lucas v. South Carolina Coastal Council, 505 US 1003, 112
S Ct 2886, 120 L Ed 2d 798 (1992); Loretto v. Teleprompter Manhattan CATV Corp.,
458 US 419, 102 S Ct 3164, 73 L Ed 2d 868 (1982). To state a claim under the Fifth
Amendment for a taking under a Lucas theory, the property owner must allege that a
governmental action has deprived the owner of all economically beneficial use of the
property. Both this court and the Oregon Supreme Court concluded that plaintiff had
stated a claim under this type of theory in the course of the previous appeal. See Boise
Cascade, 131 Or App at 551 ("plaintiff alleges, in essence, that the government has
regulated its property in such a way that productive uses are unavailable and all viable
economic and beneficial use has been eliminated. Those allegations suffice to state
regulatory taking claims under * * * Lucas"); Boise Cascade, 325 Or at 198 (Plaintiff's
allegations were "sufficient to meet the 'deprivation of all economically viable use of the
property' standard. The Court of Appeals was correct in so holding."). Although
plaintiff amended its pleadings after remand, the amended pleadings, insofar as the Lucas
theory of recovery is concerned, are much the same as its pleadings discussed in the
previous appellate decisions in this case. Plaintiff alleged that the state has regulated its
property in such a way that all viable economic and beneficial use of the property was
eliminated. The trial court properly denied the state's motion to dismiss on the ground
that plaintiff failed to state a claim under the Lucas theory.

The state also moved to strike plaintiff's allegations that it had suffered a
per se taking by means of a "permanent physical occupation" in violation of the Fifth
Amendment. In its complaint, plaintiff alleged that the administrative rules described
above required plaintiffs to maintain spotted owl nests and prevent their abandonment so
the nests could be occupied annually by a pair of breeding owls and that the state's denial
of plaintiff's plan to harvest the timber constituted a per se taking.

The Loretto case concerned "whether a minor but permanent physical
occupation of an owner's property authorized by government constitutes a 'taking' of
property for which just compensation is due under the Fifth and Fourteenth
Amendments." 458 US at 421. The state argues that the court erred in denying its
motion to strike this count of plaintiff's claim because plaintiff has not alleged the type of
physical occupation at issue in Loretto. We agree.

In Loretto, the challenged statute required landlords to permit cable
television companies to install devices on their property. Id. There, the Court recounted
at length the historic distinctions between takings involving permanent physical invasion
of property and regulations that place restrictions on the use of property. 458 US at 427-35. One of the early physical invasion cases that the Court discussed in Loretto was
Pumpelly v. Green Bay Co., 80 US (13 Wall) 166, 20 L Ed 557 (1871), in which the
Court held that "where real estate is actually invaded by superinduced additions of water,
earth, sand or other material, or by having any artificial structure placed on it, so as to
effectually destroy or impair its usefulness, it is a taking[.]" (Emphasis added.)
Pumpelly involved a situation where the government caused a party's land to become
flooded. However, the Court's "physical occupation" jurisprudence in no way suggests
that the same takings analysis would apply where, for example, a natural flood occurred
and government regulations pertained to how a landowner was to deal with floodwaters
on his or her land. Compare Pumpelly, 80 US at 177-78 (where government caused
property to flood by constructing a dam, there was a taking by "physical occupation"),
with First Lutheran, 482 US at 308 (where flood occurred as a consequence of a forest
fire destroying a watershed area, government regulation of construction within flood
zone was analyzed under regulatory takings case law).

As the state points out, there are significant differences between a
government authorizing or conducting a physical invasion of the property of another and
a government regulating what one may do with property due to the random or incidental
location of a natural resource or wild animal on the property. The state has no control
over where spotted owls choose to nest. The natural occurrence of a pair of breeding
spotted owls on a piece of property is more akin to the naturally occurring flood in our
hypothetical described above than to a flood caused by the government's construction of
a dam, as was the case in Pumpelly, or to the installation of an artificial structure such as
a cable television box, as was the case in Loretto.

The state did not cause or induce the spotted owls to breed on plaintiff's
property. The state simply regulated plaintiff's use of the property based on the presence
of the spotted owls there. Although plaintiffs have stated a claim for a regulatory taking,
they have not stated a claim for a "physical occupation" taking under Loretto. The trial
court erred in concluding otherwise.

However, that conclusion does not end our inquiry. As noted, plaintiff
pleaded two theories in alternative counts as part of its takings claim. Although the court
should have stricken the Loretto count, it properly denied the state's motion to dismiss
the regulatory taking count. As noted above, the trial court granted plaintiff summary
judgment on its regulatory taking count and submitted the Loretto count to the jury. In
response to a separate question, the jury also determined damages, but it is undisputed
that the damages under either theory would be the same. Thus, although the submission
of plaintiff's Loretto theory to the jury was erroneous, the jury's damage award
nevertheless was proper if the trial court correctly decided the regulatory taking question.
This is not a situation where we cannot tell what theory the jury followed in reaching its
conclusion. Cf. Whinston v. Kaiser Foundation Hosp., 309 Or 350, 357, 788 P2d 428
(1990) (where more than one theory is submitted to the jury and some are unsupported by
the evidence, but it cannot be determined on which allegation the jury based its verdict, a
new trial must be granted). Only one theory of liability was before the jury here, and
even though it was not properly before the jury, the damages question, which applied in
the same manner to both takings theories, was properly before the jury and would have
been properly before the jury even if the trial court had correctly stricken the Loretto
count from plaintiff's takings claim. We therefore turn to the pleading issues pertaining
to the regulatory taking claim.

The state argues that the trial court erred in striking its defense that Boise's
proposed logging would constitute a nuisance and that the state cannot be liable for
refusing to permit Boise to perform acts that constitute a nuisance and violate the law. In
Lucas, the Court noted that there would be no taking if "the proscribed use interests were
not part of [the property owner's] title to begin with." 505 US at 1027. The Court
further noted that such limitations "must inhere in the title itself, in the restrictions that
background principles of the State's law of property and nuisance already place upon
land ownership." Id. at 1029. The state's defense at issue here appears to rest on this
part of the Lucas case.

The state offers no authority for the proposition that knocking down a
bird's nest on one's property has ever been considered a public nuisance. The case on
which it relies, Columbia Fishermen's Union v. St. Helens, 160 Or 654, 87 P2d 195
(1939), concerned a suit by fishermen to enjoin the city of St. Helens from dumping raw
sewage into the Columbia River--a practice which, needless to say, was detrimental to
the fish population on which the fishermen depended for their livelihoods. That case
concluded that the fisherman had standing to maintain an action against the city. Id. at
666.

However, any analogy to the present case is less than clear. The court in
Columbia indicated that the state could protect its navigable waters from pollution
because it had an interest in ferae naturae (the fish) in the waters. It does not follow, as
the state seems to posit, that any act taken by the state to protect ferae naturae on private
property is the equivalent to an abatement of a public nuisance or, alternatively, any act
by a private party to destroy ferae naturae on private property constitutes a public
nuisance. Cf. State Dept. of Env. Qual. v. Chem. Waste, 19 Or App 712, 719, 528 P2d
1076 (1974) ("defendant has been 'operating' the site in violation of the Environmentally
Hazardous Wastes Statutes from the time they became effective in early 1972, [but] that
continuing violation does not require a finding that the site constitutes a public
nuisance"). The trial court correctly struck the state's defense that plaintiff's proposed
logging constituted a public nuisance.

In its final assignment of error concerning the pleadings, the state argues
that the trial court erred in striking its defense that it labeled as "failure to exhaust its
administrative remedies." The state argues that Boise's regulatory takings claim is unripe
because it did not make an effort to obtain an "incidental take" permit pursuant to 16
USC section 1539(a). Former OAR 660-24-809(5) provided that "[e]xceptions to the
requirements for protecting northern spotted owl nesting sites may be approved by the
State Forester if the operator has obtained an incidental take permit from federal
authorities under the federal Endangered Species Act." The state argues that, because
plaintiff did not attempt to avail itself of this exception, it may not yet assert a takings
claim. The trial court granted Boise's motion to strike this defense without stating its
reason for doing so. We therefore examine all of the arguments made to the trial court on
this issue in order to determine if the trial court erred in striking this defense.

As an initial matter, Boise correctly points out that the state's argument is
not so much an exhaustion of remedies argument as it is a ripeness argument. However,
the terminology used in the caption is not dispositive here, as the parties clearly
addressed the issue in the lower court as a ripeness issue, and Boise does not contend that
the state failed to preserve this issue. We do not consider a mislabeling of a caption in
the pleadings to be dispositive where the body of the pleading adequately describes the
nature of the defense that is being asserted. See Curran v. ODOT, 151 Or App 781, 786
n 4, 951 P2d 183 (1997) (concluding under similar circumstances that ripeness issue was
preserved).

"a claim that the application of government regulations effects a taking of a
property interest is not ripe until the government entity charged with
implementing the regulations has reached a final decision regarding the
application of the regulations to the property at issue." Williamson, 473 US
at 186.

The Court quoted from Hodel:

"There is no indication in the record that appellees have availed themselves
of the opportunities provided by the Act to obtain administrative relief by
requesting either a variance * * * or a waiver * * *[.] If [the property
owners] were to seek administrative relief under these procedures, a
mutually acceptable solution might well be reached with regard to
individual properties, thereby obviating any need to address the
constitutional questions. The potential for such administrative solutions
confirms the conclusion that the taking issue * * * simply is not ripe for
judicial resolution." 452 US at 297.

The Williamson Court went on to note that, in Agins, the property owners had submitted
a plan that was disapproved but, as they had not sought approval of any other type of
plan, it "was not clear whether the Commission would deny approval for all uses that
would enable the plaintiffs to derive economic benefit from the property." 473 US at
187. The Williamson Court concluded that the claim was unripe for the same reason that
the claim in Hodel was unripe: had the plaintiff sought and obtained available variances
and waivers, the parties might have reached a mutually acceptable solution. Id. at 188-90; cf. Curran v. ODOT, 151 Or App at 787 (addressing ripeness problem under Article
I, section 18, of the Oregon Constitution, the court concluded that plaintiff's failure to
apply for a permit that could have obviated "takings" meant that plaintiff's claim was not
ripe); Nelson v. Multnomah County, 121 Or App 119, 122, 854 P2d 476, adhered to on
recons 123 Or App 300, 859 P2d 574 (1993) (recognizing rule that if a landowner has
unsuccessfully filed an application but has pursued no alternatives that could lead to
approval, a takings claim is unripe).

The state maintains that plaintiff's claim suffers the same flaw as did the
claims of the plaintiffs in Williamson and Hodel. The state argues that plaintiff's failure
to seek an "incidental take" permit from the United States Fish and Wildlife Service
pursuant to 16 USC section 1539(a), which is a prerequisite to any variance under former
OAR 660-24-809(5) for destruction of northern spotted owl habitat, creates a ripeness
problem similar to the ripeness problems of the plaintiffs in Williamson and Hodel due to
their failure to seek variances that could have obviated the problem.

Boise responds by making several points. First, it notes that it is
undisputed that, even if Boise had obtained an incidental take permit from the United
States Fish and Wildlife Service, the state would not have been obliged to approve
Boise's logging plan. That is true; under former OAR 660-24-809(5), an incidental take
permit is a prerequisite to state approval of a logging plan that destroys spotted owl
habitat, but an incidental take permit does not, in itself, guarantee that the logging plan
will be approved. However, nothing in Williamson, Hodel or Agins implies that a waiver
or variance must be a "sure thing" in order for a plaintiff to be required to pursue such a
remedy before bringing a takings claim.

Boise also suggested, in the course of its arguments on this issue to the trial
court, that no incidental take permit would have been required in any event, for several
reasons. First, Boise asserted that the Endangered Species Act only prohibits "taking" an
endangered species, and destroying an endangered species' habitat does not fall within
the definition of "take":

"The term 'take' means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or attempt to engage in any such conduct." 16
USC Section 1532(19).

Boise also suggested in the trial court that, because the United States
Department of Fish and Wildlife had enacted a regulation defining critical habitat for the
spotted owl on federal lands but not on private land, Boise somehow was exempted from
any requirement that it acquire an "incidental take" permit before taking owls on its
private property. Boise argued:

"[T]he USF&WS had published in the Federal Register its own regulations
governing the Northern Spotted Owl. 57 Fed Reg 1796-01 (Jan 15, 1992
WL4601 (F.R.)). In that document it defined the critical habitat for the
bird's recovery. It made a specific finding that private lands were not
included in critical habitat, even where the surrounding federal lands had
been so designated. Clatsop County contains no federal critical habitat
areas for the Northern Spotted Owl and even the more than 100,000 acres
of State commercial timberlands in the county have not been so
designated."

Finally, Boise has suggested that it may be inferred from one of its trial
exhibits that the state as much as admitted that it would not have approved Boise's
logging plan even if Boise had applied for an incidental take permit. We understand
Boise's argument to be an invocation of the "futility" exception to the ripeness
requirement. Seegenerally Larson, 121 Or App at 122 (describing "futility" exception).

For two reasons, either of which is independently dispositive, we reject
Boise's assertion of futility. First, the question before us is whether the trial court erred
in striking the state's defense on the pleadings; that question cannot be answered by
reference to a trial exhibit that might, as a factual matter, be determinative of whether the
state prevailed on that defense. Second, assuming for the sake of argument that that were
not the case, the trial exhibit to which Boise refers does not indicate that it would be
futile for Boise to obtain an incidental take permit. Rather, it indicates that the state's
decision would not depend solely on the issuance of such a permit and that a decision by
the federal government that such a permit was not required would not satisfy the Oregon
administrative rule. One of the state's trial exhibits, on the other hand, is a letter of
advice to Boise from the Assistant Regional Director of the United States Department of
the Interior Fish and Wildlife Service indicating that "an incidental take permit is
required when otherwise lawful activities will incidentally take a threatened species" and
suggesting that they should visit the proposed logging site, after which the agency
"should be better able to discuss the situation and advise you regarding [an] incidental
take permit." Neither of these trial exhibits, alone or together, indicate that it would have
been futile for Boise to pursue an incidental take permit. We conclude that none of
Boise's arguments in support of its motion to strike the state's defense that the claim was
not ripe are meritorious. The trial court erred in striking the state's defense.

Because of our disposition of this assignment of error, we need not reach
the state's numerous assignments of error pertaining to the conduct of the trial.

"(1) Whenever the State Forester determines that an operation will
conflict with protection of a nesting site of the northern spotted owl * * *,
the operator must obtain the State Forester's approval of a written plan
before commencing the operation. The written plan, at a minimum, must
address how the operation will be conducted to provide for the following:

"(a) A 70-acre area of suitable spotted owl habitat encompassing the
nest site, to be maintained as suitable spotted owl habitat[.]"

"The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State."

4. The Fourteenth Amendment to the United States Constitution provides, in
part:

"Section 1. * * * No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.

"* * * * *

"Section 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article."

5. The state concedes that Congress has authority to subject it to suit in state
court without its consent. We recognize that Alden may well be read to indicate
otherwise, but we will treat the state's concession in this case as a partial waiver of any
sovereign immunity defense that it is immune from suit in state court even if Congress
has the authority to subject it to suit in federal court.

6. In Williamson, the Court explained the distinction between "exhaustion of
remedies" and "ripeness" as follows:

"While the policies underlying the two concepts often overlap, the finality
requirement is concerned with whether the initial decision-maker has
arrived at a definitive position on the issue that inflicts an actual, concrete
injury; the exhaustion requirement generally refers to administrative and
judicial procedures by which an injured party may seek review of an
adverse decision and obtain a remedy if the decision is found to be
unlawful or otherwise inappropriate."

"(1) Except as provided in sections 1535(g)(2) and 1539 of this
title, with respect to any endangered species of fish or wildlife listed
pursuant to section 1533 of this title it is unlawful for any person subject to
the jurisdiction of the United States to -

"* * * * *

"(B) take any such species within the United States or the territorial
sea of the United States[.]"

8. It is possible that the designation of critical habitat on federal lands could,
in fact, affect whether or how incidental take permits are granted for taking endangered
species on private lands. That, however, has no bearing on whether the state's defense
based on Boise's failure to even attempt to get an incidental take permit should have been
stricken from the pleadings.